A hit, a very palpable hit

Good news from the Federal Court this morning. As those of you who have been following our work at the Military Police Complaints Commission (MPCC) may recall, the Department of Justice filed a series of applications for judicial review in the Federal Court before the close of evidence in the Afghan Public Interest Hearings. These applications sought to limit the MPCC’s jurisdiction to make certain factual findings and recommendations, as well as its access to relevant documents. The BCCLA and Amnesty International opposed these applications, and the Federal Court agreed with us.

The applications

The DOJ’s first challenge was to one of a series of summonses issued by the MPCC to the government for production of documents related to the military police’s role in detainee handling and transfers. By way of background, the Afghan Public Interest Hearing has been repeatedly delayed and hampered by ongoing disputes over document production from the Department of Justice. Indeed, it was the DOJ’s delay and apparent recalcitrance in providing the Commission with necessary documents which led to the establishment of the public hearing, in the first place.

The summons at issue here was sent by the MPCC following the disclosure of certain documents to the BCCLA and Amnesty pursuant to an Access to Information Act request. These documents consisted primarily of communications between Canadian officers in Afghanistan and civilian officials in Canada concerning the decision to suspend detainee transfers in November 2007. None of these documents had been previously produced to the MPCC, despite their clear relevance to the MPCC’s investigation. A flurry of correspondence between the MPCC and the DOJ followed. The Federal Court’s recap:

The Commission counsel reviewed the documents and wrote to counsel for Attorney General on April 8, 2010. Commission counsel was of the view that the documents collected in response to the Access to Information request would also be relevant to the subject matter of the Commission’s inquiries, and found it “inconceivable” that these documents, many of which were addressed or copied to individuals who were summonsed as witnesses, could have been considered irrelevant to the matters under inquiry.

The Department of Justice and the MPCC exchanged further letters on the issue. In a letter dated April 9, 2010, counsel for the Attorney General indicated that the documents were not produced “because they were not communicated to any military police members, including the subjects of the complaint and there is no evidence that they were otherwise available to them”. In other words, the Attorney General takes the position that it is the government’s prerogative to determine whether the documents were shared with Military Police members or were “within their means of knowing”. In response, MPCC counsel strongly disagreed with the position and wrote: “We believe it is the Commission’s mandate to determine wehtehr or not there is evidence that documents were communicated to, or available to, Military Police members. This cannot be determined by government officials looking at the face of the documents and deciding not to produce them.” This is clearly the nub of the dispute between the Attorney General and the Commission.

(Internal citations omitted; emphasis added.)

Eventually, government witnesses were ordered to appear before the Commission to explain how documents were being reviewed and produced. Following their testimony, the MPCC issued a new summons, requiring the government to produce several additional categories of documents, including a category broad enough to capture the documents received by the BCCLA and Amnesty through its ATI request. The government challenged the summons in Federal Court.

The DOJ’s second application alleged that the MPCC refused to hear the DOJ’s motion seeking a ruling on “standards of conduct.”

In an earlier ruling, the Federal Court had held that the subjects of the Afghan Public Interest Hearing would only be responsible for information that was within their individual “means of knowing”. The Federal Court, however, did not provide any definition or further elaboration on the meaning of “means of knowing”. The DOJ brought a motion to the MPCC, asking that it provide a determination on how it would interpret “means of knowing”, arguing that the subjects would not otherwise be able to properly defend themselves if they didn’t know the standard to be met.

The MPCC concluded that establishing a firm definition of “means of knowing” was premature, given that such determinations are “inherently factual and contextual”. (A position that the BCCLA and Amnesty advanced and endorsed). Accordingly, evidence must be heard. Likewise, it was also premature to set out a conclusive “standard of conduct”, because that determination was also grounded in fact and context. The DOJ declined to seek a judicial review of these decisions, and the hearing proceeded.

A few months later — well after the MPCC had already started taking live testimony — the DOJ again brought a motion seeking a ruling on the “means of knowing” standard. The MPCC referred to its previous decision — that a ruling on the “means of knowing” standard was premature, and the issue would be decided after the close of the non-subject testimony. The DOJ sought judicial review of the MPCC’s decision. The hearings progressed, and the MPCC heard the DOJ’s motion the day after the last of the non-subject witnesses testified.

Shortly thereafter, the MPCC rendered its ruling on the “means of knowing” standard, prior to any of the subjects appearing as witnesses. Dissatisfied with the MPCC’s interpretation of “means of knowing” and its refusal to determine — before the close of evidence, and even before any of the subjects had testified — whether the subjects had a duty to investigate or seek out more information about post-transfer treatment of detainees, the DOJ applied to the Federal Court for a review of the MPCC’s ruling, bringing the number of pending judicial reviews to three.

The Federal Court’s ruling

The Federal Court agreed that it was premature to establish a “means of knowing” standard, and, like the MPCC, declined to come to any conclusion about the duty to investigate. It found that it was generally inappropriate for the Federal Court to intervene in the MPCC’s investigative procedure and decision-making prior to the conclusion of its work, and that the DOJ had not provided it with any reason to do so in this case.

With respect to the summons for document disclosure, the Federal Court remarked that “it is self-evident that document disclosure is fundamental to the ability of the Commission to discharge its mandate and conduct a full, independent investigation into the complaint.” Importantly, it also noted that

As the independent oversight body tasked by Parliament with carrying out a public inquiry into the complaint, it is the MPCC’s responsibility to make its own, independent decision as to what documents it considers necessary for a full investigation of the complaint. It should not have to rely on selected documents provided on the basis on an opaque screening process conducted in-house by government officials. … If the Commission does not have full access to relevant documents, which are the lifeblood of any inquiry, there cannot be a full and independent investigation.

(Emphasis added.) Accordingly, the Federal Court found that the MPCC did not overstep its jurisdiction in seeking additional documents from the government.

What this means

The MPCC’s mandate and the scope of its report will not be further narrowed.

Recall that the jurisdiction of the MPCC itself is already exceedingly limited — it can only really examine the conduct of the military police branch of the Canadian Forces. And following the government’s first challenge to the MPCC’s jurisdiction to the hold the Afghan Public Interest Hearings, the scope of the MPCC’s review was limited to the question of whether the named subjects had failed in a duty to investigate potential misconduct related to the transfer of detainees to Afghan custody. If the government had succeeded in its applications, there was the possibility that the MPCC’s jurisdiction in this case would be even further circumscribed.